The techie from New York may be one of the few people to fight a request for information from the FBI that came in the form of a tool called a national security letter. The Patriot Act made it easier for authorities to demand records from Internet service providers like Merrill’s company. But Merrill is the only person who’s gone to court to get a green light to talk about it, and he’s doing so.

It’s time to have an open discussion about the direction that our country’s going in, in terms of all this secrecy and justifying everything with national security.

– Nicholas Merrill

“I find it kind of upsetting that there’s still so much secrecy surrounding these powers and their actual use, even to this day,” Merrill says.

But even Merrill’s court victory has its limits, as NPR found out after asking him for details about the visit he got from an FBI agent back in the winter of 2004.

“Unfortunately I am not at liberty to talk about that, because that’s one of the things that’s still covered under the gag order that I’m under,” Merrill says.

They’re bothered by another part of the law, the so-called sneak-and-peek provision. It lets FBI agents search a person’s home or business with a judge’s blessing, but without telling the person they’re doing it.

“We’re now finding from public reports that less than 1 percent of these sneak-and-peek searches are happening for terrorism investigations,” says Michelle Richardson, who works for the ACLU in Washington. “They’re instead being used primarily in drug cases, in immigration cases, and some fraud.”

What’s more, Richardson says the Justice Department doesn’t usually point to specific terrorism cases it built thanks to the Patriot Act, raising questions about whether the powerful law really works.

“I think a number of provisions have been very useful,” says Pat Rowan, who led the Justice Department’s national security unit during the Bush years. “But it’s not so much that they can be isolated and pointed to and said, ‘Oh, well this particular provision caused the government to discover a plot it otherwise wouldn’t have discovered.’ ”

Instead, Rowan says, the Patriot Act made investigations more efficient by giving investigators in national security cases many of the same tools they had in criminal cases — and by encouraging intelligence operatives and law enforcement agents to share information.

And Lisa Monaco, the assistant attorney general for national security, told NPR in a written statement that the ability of FBI and intelligence analysts to work together helped the country to move quickly in September 2009 to find a man trying to target the New York City subway system. That man, Najibullah Zazi, ultimately pleaded guilty last year in connection with the plot, Monaco said.

Congress and the country felt very comfortable with the basic work that we did.

Viet Dinh, the former Justice Department lawyer who wrote the Patriot Act, tells NPR that despite all the criticism from civil liberties groups, most people couldn’t tell you what’s in the law.

“There’s no question that the USA Patriot Act has become a brand, if you will, a symbol of all the counterterrorism activities after 9/11,” Dinh says.

Dinh says the law simply gave the FBI more flexibility to do its job — and he points out that Congress has reauthorized provisions in the law with only small changes several times in the past 10 years.

One of the tweaks lawmakers made was allowing people like Merrill to talk to a lawyer for advice about receiving a national security letter.

In the years that followed the Sept. 11 attacks, the Justice Department’s inspector general went on to study the FBI’s use of national security letters, reporting that agents had demanded information without following internal procedures, and in some cases, in violation of the law. The FBI blamed the mistakes on poor record-keeping and insufficient oversight.

Dinh says that there have been “troubling instances of their misapplication and misuse” by the FBI. But he says it’s clear that “Congress and the country felt very comfortable with the basic work that we did” in the Patriot Act.

Bigger Surveillance Efforts?

Richardson, at the ACLU, says she hasn’t given up on efforts to get lawmakers to scrap some parts of the Patriot Act. But she’s got her eye on even bigger surveillance efforts in the works now.

“The White House’s cybersecurity proposal right now makes the Patriot Act look quaint,” Richardson says. “And really, the collection that it would allow would really outpace anything that’s probably being done under the Patriot Act.”

Merrill, who wasn’t able to talk to his family for years about the FBI request or his lawsuit, still wonders how many other people have gone through a similar experience. Two Democratic senators, Ron Wyden of Oregon and Mark Udall of Colorado, have been demanding this year that the Justice Department go public with a classified interpretation of one part of the Patriot Act that they say would surprise and anger the public.

“It’s time to have an open discussion about the direction that our country’s going in, in terms of all this secrecy and justifying everything with national security,” Merrill says.

That’s a conversation that Merrill hopes to jump-start Wednesday — on the Patriot Act’s 10th anniversary.

Right now, he is on his way to New Orleans to greet supporters and talk with the media about the injustice he suffered and his plan to build a life at age 50, after
losing 30 years in prison for a crime he did not commit.

The Innocence Project accepted James’ case in 2005, but several searches for
evidence proved fruitless. Then, in May 2010, James had an incredible stroke of
luck. That day, a lab worker named Milton Dureau was looking for evidence in a
different case when he stumbled upon a slide from James’ case. Fortunately, he
remembered James’ case number from his earlier search. The evidence was sent to a lab, where DNA testing proved James’ innocence.

Today’s New York Times has this effective editorial criticizing mandatory minimum sentencing provisions headlined “An Invitation to Overreach.” Here are excerpts:

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost. These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system’s attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems. As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities…. These laws have helped fill prisons without increasing public safety. In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

A brief but compelling editorial from The Gainesville Sun responded to the AP article and pinpointed Florida’s main problem: “This state locks too many people up for too long.” Here’s the Sun‘seditorial response, in its entirety:

Editorial: “The Wrong Reform”

If Gov. Rick Scott and Florida legislative leaders would get over their obsession with privatizing prisons, perhaps they might focus on the real cause of Florida’s runaway corrections spending.

This state locks too many people up for too long.

A succession of “get tough on crime” mandatory minimum sentencing laws are primarily responsible for a state incarceration rate that is 26 percent higher than the national average.

An Associated Press report this weekend cited the case of a man serving a mandatory five-year prison sentence for possession of a handful of Lortab tablets, “prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers.”

“Florida’s prison system, which now has about 102,000 inmates, grew more than 11-fold from 1970 through 2009 while the state’s population increased just under three times,” the AP reported. “Florida also has done away with parole and requires inmates to serve a minimum of 85 percent of their sentences, which have kept inmates behind bars longer.”

Citing data from “Right on Crime,” a prison reform group that advocates doing away with mandatory minimum sentences and relying more on drug courts and substance abuse treatment for offenders, the AP report continued, “If Florida imprisoned people at the same rate it did in 1972-73 the state would have only 23,848 inmates and be spending $446 million a year on prisons instead of $2.4 billion.”

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